1
EXHIBIT 2.2
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This Amendment (the "Amendment") to Agreement and Plan of Merger dated as
of May 3, 1998 (the "Agreement") is made and entered into as of June 9, 1998 by
and among Xxxxxx Instrument Corporation ("Xxxxxx"), Bravo Acquisition
Subsidiary, Inc. ("Acquisition Subsidiary") and Electronic Designs, Inc.
("EDI"). All capitalized terms used herein and not defined shall have the
respective meanings assigned to them in the Agreement.
RECITALS
A. Pursuant to the Agreement, Xxxxxx, Acquisition Subsidiary and EDI have
made certain representations, warranties and agreements in connection with the
Merger.
B. The respective Boards of Directors of Xxxxxx, Acquisition Subsidiary and
EDI have determined that it is in the best interests of their respective
corporations and shareholders to modify certain representations, warranties and
agreements in the Agreement and, accordingly, have approved this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Section 1.4 of the Agreement is hereby deleted in its entirety and
replaced with the following:
1.4 STOCKHOLDERS' RIGHTS UPON MERGER. Upon consummation of the Merger,
the certificates which theretofore represented EDI Shares (other than
Dissenting Shares) (the "Certificates") shall cease to represent any
rights with respect thereto and, subject to applicable law and this
Agreement, shall only represent the right to receive the Merger
Consideration payable in lieu of fractional shares of Xxxxxx Stock
into which the EDI Shares have been converted pursuant to this
Agreement.
2. Section 1.11(a)(iii) of the Agreement is hereby deleted in its entirety
and replaced with the following: "(iii) holding the meeting of Xxxxxx'x
shareholders to approve the amendment of Xxxxxx'x Articles of Incorporation to
increase the number of authorized shares of Xxxxxx Stock and to change Xxxxxx'x
name, and to approve the issuance of the Xxxxxx Stock and other securities in
the Merger and the other transactions contemplated hereby and thereby (the
"XXXXXX PROPOSALS"),".
3. Section 1.11(e) of the Agreement is hereby amended by adding the
following as the third sentence of such Section:
2
In the event the parties agree that the Merger shall be accorded
pooling of interests accounting treatment in accordance with
Accounting Principles Board Opinion No. 16, prior to the filing of the
Prospectus/Proxy Statement, it shall be a condition to such filing
that Xxxxxx shall have received the written opinion of the independent
certified public accountants of Xxxxxx that such accountants concur
with management's conclusion that, as of the date of the letter, no
conditions exist that would preclude accounting for the Merger as
pooling of interests in accordance with Accounting Principles Board
Opinion No. 16.
4. Section 1.14 of the Agreement is hereby deleted in its entirety and
replaced with the following:
1.14 AUTHORIZED SHARES. On or prior to the Effective Time, the
Articles of Incorporation of Xxxxxx shall be amended to increase the
number of shares of Xxxxxx Stock that Xxxxxx shall be authorized to
issue to 60,000,000.
5. A new Section 1.19 is hereby added to Article I of the Agreement as
follows:
1.19 DISSENTING SHARES.
(a) Notwithstanding any provision of this Agreement to the
contrary, any shares of EDI Common Stock held by a holder who has
demanded and perfected his demand for appraisal of his shares of EDI
Common Stock in accordance with Section 262 of the Delaware Code and
as of the Effective Time has neither effectively withdrawn nor lost
his right to such appraisal (the "DISSENTING SHARES"), shall not be
converted into or represent a right to receive the Merger
Consideration pursuant to SECTION 1.3 hereof, but the holder thereof
shall be entitled to only such rights as are granted by the Delaware
Code.
(b) Notwithstanding the provisions of subsection (a) of this
SECTION 1.19, if any holder of shares of EDI Common Stock who demands
appraisal of such shares under the Delaware Code shall effectively
withdraw or lose (through failure to perfect or otherwise) his right
to appraisal, then as of the Effective Time or the occurrence of such
event, whichever later occurs, such holder's shares of EDI Common
Stock shall automatically be converted into and represent only the
right to receive the Merger Consideration pursuant to SECTION 1.3
hereof, without any interest thereon, upon surrender of the
certificate or certificates representing such shares of EDI Common
Stock.
(c) EDI shall give Xxxxxx (i) prompt notice of any written demands
for appraisal or payment of the fair value of any shares of EDI Common
Stock, withdrawals of such demands, and any other instruments served
pursuant to the Delaware Code received by EDI and (ii) the opportunity
to direct all negotiations and proceedings with respect to demands for
appraisal under the Delaware Code.
-2-
3
EDI shall not voluntarily make any payment with respect to any demands
for appraisal and shall not, except with the prior written consent of
Xxxxxx, settle or offer to settle any such demands.
6. The following sentence is hereby deleted from Section 2.2 of the
Agreement: "The holders of shares of EDI Stock are not entitled to appraisal
rights under applicable Law (as hereinafter defined) or the Certificate of
Incorporation of EDI."
Xxxxxx hereby waives its right to assert breach of the Agreement by EDI
based upon the inaccuracy of this representation prior to the execution of this
Amendment.
7. A new Section 1.20 is hereby added to Article I of the Agreement as
follows:
1.20 XXXXXX CHANGE OF NAME. On or prior to the Effective Time, the
Xxxxxx Articles shall be amended to change the corporate name of
Xxxxxx to such other name as may be mutually agreed upon by EDI and
Xxxxxx prior to the mailing to stockholders of EDI and Xxxxxx of the
Prospectus/Proxy Statement.
8. A new Section 4.13 is hereby added to Article IV of the Agreement as
follows:
4.13 POOLING OF INTERESTS. EDI shall not take, and shall use
reasonable best efforts to ensure that none of the EDI Subsidiaries
and their respective stockholders, directors, officers or employees
takes, any action that would result in the Merger not qualifying for
pooling of interests accounting treatment in accordance with
Accounting Principles Board Opinion No. 16. In the event that the
Merger otherwise qualifies for pooling-of-interests accounting
treatment in accordance with Accounting Principles Board Opinion
No. 16, EDI shall use reasonable efforts to ensure that each person
who is or may be an "affiliate" of EDI within the meaning of Rule 145
promulgated under the Securities Act shall enter into an agreement
in substance as provided in the form attached hereto as SCHEDULE 4.13.
9. A new Section 5.14 is hereby added to Article V of the Agreement as
follows:
5.14 POOLING OF INTERESTS. Xxxxxx shall not take, and shall use
reasonable best efforts to ensure that none of the Xxxxxx
Subsidiaries and their respective stockholders, directors, officers
or employees takes, any action that would result in the Merger not
qualifying for pooling of interests accounting treatment in
accordance with Accounting Principles Board Opinion No. 16.
10. A new Section 5.15 is hereby added to Article V of the Agreement as
follows:
5.15 AFFILIATE AGREEMENTS. In the event that the Merger otherwise
qualifies for pooling of interests accounting treatment in accordance
with Accounting Principles Board Opinion No. 16, Xxxxxx shall use
reasonable efforts to ensure that each person who is or may be an
"affiliate" of Xxxxxx within the meaning
-3-
4
of Rule 145 promulgated under the Securities Act shall enter into an
agreement in substance as provided in the form attached hereto as
SCHEDULE 5.15.
11. Section 6.3.5 of the Agreement is hereby deleted in its entirety and
replaced with the following:
6.3.5. AFFILIATE AGREEMENTS. Each person who is or may be an
"affiliate" of EDI within the meaning of Rule 145 of the rules and
regulations of the SEC promulgated under the Securities Act shall have
entered into an agreement in substance as provided in the form
attached hereto as SCHEDULE 4.11; provided, however, that the failure
to obtain such an agreement from New York Life Insurance Company shall
not be a condition to the obligations of Xxxxxx to effect the Merger.
12. A new SCHEDULE 4.13 and a new SCHEDULE 5.15, as each is attached to
this Amendment, are hereby made a part of the Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Amendment to the
Agreement as of the date first above written.
XXXXXX INSTRUMENT CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
__________________________
Name: Xxxxx Xxxxxxxxxx
Title: Chief Executive Officer
BRAVO ACQUISITION SUBSIDIARY, INC.
By: /s/ Xxxxx Xxxxxxxxxx
__________________________
Name: Xxxxx Xxxxxxxxxx
Title: President
ELECTRONIC DESIGNS, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx
___________________________
Name: Xxxxxx X. XxXxxxxxxx
Title: President
-4-
